Abstract
According to a conventional story told by scholars, the Australian Constitution is virtually invisible as a symbol within Australian political debate and culture. This article challenges that conventional story, arguing that the Constitution plays a more significant public role than is commonly assumed. Analysing the ongoing debate over the constitutional recognition of Aboriginal and Torres Strait Islander peoples, the article highlights four prominent symbolic Constitutions: the practical, the liberal, the outdated and the exclusionary. These constitutional symbols are mobilised by different political actors for a range of political purposes. Understanding constitutional symbolism helps in seeing the ideological work performed by the Constitution outside the courts and prompts constitutional scholars to be more conscious of how they contribute to that ideological work through their representations of the Constitution.
For every constitution there is an epic, for each decalogue a scripture. 1
Except in Australia, apparently. Among Australian lawyers, there is a well-told and decidedly non-epic story about what sort of life the Australian Constitution has in the public imagination: the Australian Constitution has no life. It does not, in other words, feature as a symbol within Australian political debate and culture. 2 Much of the blame for this state of affairs can be laid squarely at the feet of the unremarkable document itself. Unlike the rousing texts of other nations’ constitutions, such as the quintessential United States instrument, the Australian Constitution does not contain grand expressions of rights or principles. It does not proclaim universal truths of political philosophy, nor does it recite the more local truths of national history. The Australian Constitution does something much more mundane and workmanlike. Unassumingly nestled in a provision of a statute passed by the British Imperial Parliament, the Constitution, in lawyerly prose, establishes the institutions of Federal Government, divvies up authority between them and delineates the respective powers of the Federal Government and the States. It is a ‘structural constitution’, not a ‘rights constitution’. It is a constitution founded in continuity with the past, rather than in a radical break from it. It is a practical instrument of government, not a self-conscious embodiment of national identity and values.
According to this story, the Australian Constitution, a technical and arid legal document, is a hard field to be tilled by lawyers rather than a verdant civic garden that sustains and inspires the citizenry. And the citizenry responds accordingly. Bequeathed such a pedestrian founding document, the public simply ignores it, forsaking appeals to it in the course of political debate. Many Australians don’t even know they have a constitution, much less turn to it as a touchstone of civic life. When they go looking for sources of Australian identity and values, they look elsewhere—anywhere but the Constitution. Australians live in a state of constitutional estrangement.
This short article challenges the conventional story. I argue that the Constitution plays a more significant symbolic role in public life than scholars commonly assume. There is no doubt a good deal of truth in the conventional story. But this story also leads us to miss the many ways in which the Constitution functions as a symbol in Australian political culture. Ironically, embedded in the very notion that the Constitution is a kind of non-symbol are some important strands of constitutional symbolism. Thus, for some people, the Constitution’s dearth of declarations of values or identity paradoxically symbolises something important about Australia—bespeaking its people’s pragmatic, unsentimental character. 3 That is one common way that the Constitution is represented, but there are others—other symbolic constitutions.
Having a proper understanding of the Constitution’s symbolic role matters for two reasons. First, it helps us see the political work that the Constitution performs beyond its official role as a legal instrument that regulates public power. Much of that political work involves shoring up the constitutional status quo, but some forms of constitutional symbolism contribute to modifying or challenging the constitutional order.
Second, for those of us who study and teach about the Constitution, understanding how the Constitution operates as a public symbol helps us be more aware of the ways in which we ourselves represent the Constitution in our research, teaching and interaction with the wider community. Given our power as some of the most authoritative sources of constitutional knowledge, what we say about the Constitution—to colleagues, students, practising lawyers, policymakers and the general public—matters. Our pronouncements about the Constitution, its history, its practical operation, its politics and its future affect how Australians think about the Constitution and ultimately how they imagine the possible shapes of the political future. 4 Our resort to a proverbial story of the non-symbolic Constitution is not simply a description of reality; it is itself a particular way of representing the Constitution, a form of constitutional symbolism. But it is not the only story available. It is also a story that tends to depoliticise the Constitution, thereby reinforcing the constitutional status quo. As scholars and teachers of the Constitution, we should be mindful about what particular representations of the Constitution make visible, what they occlude, whose interests they serve and what the alternatives might be.
I begin by critiquing the claim that the Constitution is largely invisible within the Australian political culture. After outlining the conventional story told by constitutional scholars about the Constitution’s invisibility, I argue that such claims are unduly influenced by the unrepresentative example of the US Constitution. They are also too narrowly focused on the Constitution as a symbol of shared identity and values, neglecting other forms of constitutional symbolism. If only we take a closer look, and we know what to look for, we find that the Constitution does operate as a symbol within the Australian political culture. It has done so, to varying degrees and in numerous ways, since it was drafted in the 1890s. 5 Indeed, the very claim of the Constitution’s invisibility engages in such symbolic work, in a way that tends to depoliticise and legitimise the Constitution.
I then briefly survey several ways that the Constitution has recently taken on symbolic significance within public life. I look at how different political actors with varying agendas and ideological outlooks have represented the Constitution through interventions into public debate—how they conjure different visions of the Constitution to serve their political projects. I focus on an area of public debate where the Constitution has taken on multiple symbolic guises over the past decade: the debate over recognising Aboriginal and Torres Strait Islander peoples within the Constitution. I draw attention to four common symbolic constitutions—the practical, the liberal, the outdated and the exclusionary—operating in the Indigenous constitutional recognition debate and show how they are used by different people to support particular political positions. The practical and liberal constitutions are mainly invoked by conservatives to venerate and uphold the Constitution, typically in opposition to Indigenous recognition, whereas the outdated and exclusionary constitutions are deployed primarily by progressives to critique the Constitution, typically in support of Indigenous recognition or other constitutional change.
I Australia’s Invisible Constitution: A Critique
Scholars ordinarily see the Constitution as a kind of non-symbol: an instrument that is virtually invisible in public discussion and barely registers in political consciousness. As Greg Craven has colourfully put it, ‘[s]aying the Australian Constitution does not have a strong hold upon our popular imagination is like saying fish survive better in water than on land: a statement so obvious as to be remarkable only because someone could be bothered making it’.
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Elisa Arcioni and Adrienne Stone reach the same conclusion: A striking feature of the Australian Constitution is the muted role it plays in defining the social and political culture of the nation. To an extent that would surprise many outside observers, the Australian Constitution is not understood to be a repository of shared values, is not thought to contain fundamental principles to which the citizenry agree or aspire, and does not frame public debate.
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According to Jeffrey Goldsworthy, within public debate, the Constitution ‘remains largely in the background and only occasionally attracts a modicum of public attention due to some dispute (usually a federal one) about its meaning’. 8 Rather than itself becoming a visible symbol in public debate, ‘the Constitution merely provides a framework within which debates over political morality take place’. 9
Most of this analysis is at least casually comparative, identifying an Australian exceptionalism that stands in marked contrast to the prominent social role that constitutions apparently take on elsewhere. Almost invariably, the comparator of choice is the US. 10 According to Craven, compared to Australia’s publicly neglected Constitution, the US version is ‘a star among constitutions, with a vast official publicity machine: if it attended premieres it would be in dark sunglasses, fashionably dishevelled’. 11
Scholars identify several factors to explain the Constitution’s apparent invisibility. First, the document is written in legalistic, uninspiring prose. 12 The Constitution, to quote Justice Keane, ‘does not announce itself to an amazed world as the self-executing resolve of “We the People”’. 13 By contrast with ‘the magnificent and much admired American eagle’, the Australian Constitution is merely ‘a small brown bird’. 14 Second, the Constitution’s provisions are concerned more with setting up institutions and structures for the task of governing rather than with protecting the rights of individual citizens. 15 Third, Australia’s Constitution lacks a rousing origin story: it emerged through an evolutionary and uneventful political process, one that kept faith with the pre-existing legal regime. 16 Fourth, the High Court is wedded to a legalistic form of expression. 17 In short, the Constitution is publicly invisible because it is a lawyerly document that lacks uplifting phrases, rights protections, a thrilling origin story and accessible judicial interpretation.
There is surely much truth in this diagnosis of the Australian Constitution’s relative public anonymity, especially when compared to the US Constitution. Australians’ exposure to US news and popular culture provides an intuitive sense, surely correct, that the US Constitution is supported by ‘a vast official publicity machine’ that its Australian counterpart lacks. 18 The diagnosis of Australia’s invisible Constitution finds some support in surveys undertaken in the late 1980s and early 1990s. While these data are dated and open to real questions about methodology and interpretation, these data suggest that a not-insignificant proportion of Australians—between 17 per cent and almost 50 per cent of those surveyed—do not even know that Australia has a Constitution. 19 The reasons that scholars give to explain such constitutional estrangement are plausible.
Nonetheless, I want to suggest that this analysis, focused on the Constitution’s public invisibility, ends up overlooking the many ways that the Constitution does indeed function as a symbol in Australian political culture. There are two main reasons why the Constitution’s symbolic role has been overlooked.
One reason is that, informed by the unrepresentative experience of the US Constitution, scholars have searched for an exceptional degree of constitutional visibility in Australia and, upon not finding it, have failed to see what is there. There is no doubt that when it comes to popular constitutional consciousness, Australia cannot hold a candle to the US, where constitutional attachment amounts to a ‘civil religion’. 20 But few if any other constitutions could be said to rise to the US level of constitutional prominence. Indeed, the US Constitution is not simply a domestic public symbol; it a global one, unmatched in its worldwide renown. The US Constitution’s status as a global cultural product promoted around the world results from the enormous global influence of American news and culture and the projection in both softer and harder forms of US geopolitical hegemony. 21 In these ways, it is the US Constitution rather than the Australian that is exceptional.
To be sure, there are other constitutions that, although not possessing the global visibility of the American version, attain a degree of domestic prominence that is almost certainly substantially greater than in Australia. The German and Indian constitutions come to mind. 22 Whether such domestic constitutional prominence represents the global norm is open to question and in need of empirical verification, but it is also not the point. Rather, the point is that we should not allow a constitution’s seeming comparative lack of public prominence to blind us to the ways in which that constitution nonetheless operates symbolically in the public sphere. If we take the time to look, we might be surprised by what we find.
The second reason why the Australian Constitution’s role as a public symbol has been overlooked is that, again especially influenced by the US example, scholars have been too narrowly focused on finding one kind of constitutional symbolism, to the neglect of others. In particular, the focus is ordinarily on a constitution assuming prominence as a symbol of a shared national identity and common values. 23 That a constitution might or should take on that status is a notion suggested most powerfully by the US Constitution, widely seen as the sacred text of American public life. The achievement of a high degree of ‘integration by constitution’, as Dieter Grimm has put it, is also observable in other places. 24 In Australia, by contrast, the Constitution is almost certainly not so central as a symbol of national identity and values.
Important as it is to keep in view the role of a constitution in symbolising shared identity and values, it can obscure other significant dimensions of constitutional symbolism. For one thing, by focusing on constitutions as the embodiment of shared identity and values, we miss the fact that constitutions will come to symbolise multiple, competing or conflicting, identities and values and that there will be contestation about what any particular identities or values expressed in a constitution entail in practice and whether they are worthy of veneration, indifference, criticism or contempt. All visions of constitutional identity and values—whether laudatory or critical—are partisan, promoted by particular agents for particular political ends at particular historical moments, and those visions will not be universally shared even when they are widespread. This claim applies even to the US, where ‘the cult of the Constitution’ can occlude dissentient forms of constitutional symbolism, including those that involve constitutional critique or even disavowal. 25 So, rather than confining our search for constitutional symbolism to a constitution’s embodiment of shared identity and values, we should be attentive to multiple, contested and competing visions—both celebratory and critical—of the identity and values symbolised by a constitution and be alive to the political projects being pursued by the actors promoting those visions. At the same time, we should pay attention to how widely shared particular understandings of a constitution are and investigate what explains their wider prominence or lack of it.
Another side of constitutional symbolism that gets overlooked by a focus on shared identity and values is a constitution’s symbolic role as a technical and practical legal instrument. In this role, a constitution attains public visibility by serving its official function of establishing, regulating, empowering and constraining state actors. Representations of this technical constitution typically arise in the context of specific legal and political disputes over the constitution’s official meaning. It would be a mistake to see these technical forms of constitutional symbolism as unimportant or politically neutral. Purely descriptive representations of the technical or practical constitution can help to make the constitution seem to be the apolitical domain of courts and legal experts, a given or natural background that frames politics, rather than a site of past, present and future political struggle. Such depoliticisation has the decidedly political effect of legitimating the constitutional status quo. As we will see in the Indigenous recognition debate, political agents may also intentionally deploy the symbol of the technical or practical constitution in the service of more specific political projects.
Indeed, the symbol of the technical, practical constitution is embedded within the scholarly account of Australia’s invisible Constitution. That account represents the Constitution as a legalistic document that largely eschews questions of values and national identity—as a technical and practical instrument. 26 When scholars relate this account of the Constitution in their research, teaching and engagement with the wider public, they are reproducing a particular kind of constitutional symbolism—paradoxically, since the story of Australia’s invisible Constitution is premised on the absence of constitutional symbolism.
As with other invocations of the technical or practical constitution, the story of Australia’s invisible Constitution tends to have a depoliticising effect. To be sure, accepting that the Constitution is, as a matter of reality, a technical, practical and invisible document does not dictate any particular political position in relation to that reality: some celebrate it, 27 others lament it. 28 But representations of the Constitution as technical, practical and invisible nonetheless tend to reinforce the idea that the Constitution is a value-free, politically neutral instrument rather than a value-infused, politically contentious document that has served to privilege the ideas, interests and identities of some people while excluding and marginalising others. Such depoliticisation legitimates the constitutional status quo, to the detriment of those who would seek to transform it.
II Constitutional Symbolism in the Indigenous Recognition Debate
I turn now to explore constitutional symbolism within recent Australian political discourse, focusing on the debate over recognising Aboriginal and Torres Strait Islander peoples in the Constitution. For over a decade now, this debate has garnered substantial public attention as the subject of official enquiries and consultations, media reportage and analysis, public pronouncements by prominent politicians and advocates, numerous books and articles, and activism and protest. The debate is over whether and how to ‘recognise’ First Nations peoples within the Constitution. Among proponents, proposals for Indigenous recognition range from the formal and symbolic through to the radical and transformative. 29
I highlight four symbolic Constitutions that have become prominent in the Indigenous recognition debate: the practical, the liberal, the outdated and the exclusionary. These four constitutional symbols can all be found in other debates too, though they by no means exhaust the field of constitutional symbolism. My brief survey is partial and incomplete, intended to be suggestive rather than comprehensive. I focus predominantly on what might be labelled elite discourse: public discussion by politicians, publicly funded agencies, think tanks, policy intellectuals, writers and activists. Whether this discourse substantiates a popular constitutional culture, rather than an elite one, is open to debate. But the discourse matters because of the power of elites to influence the views and behaviour of other elites as well as non-elites.
A The Practical Constitution
Ironically, one of the most common ways that the Australian Constitution has been invested with symbolic significance in the Indigenous recognition debate is through its claimed status as a non-symbol. In this rendering, the Constitution is a technical, practical instrument of government rather than a document laden with the symbolism of values, identity and rights. Most of those invoking this vision of the Constitution are from the liberal–conservative side of politics, usually deploying it to oppose Indigenous recognition. They argue that since Indigenous recognition would inject values and identities, and possibly abstract rights and principles, into the Constitution, it would be fundamentally incompatible with the Constitution’s pragmatic and technical nature.
This image of the practical Constitution featured prominently in the well-publicised 2014 proposal by conservative lawyers Damien Freeman and Julian Leeser to pursue Indigenous recognition through an extra-constitutional ‘Declaration of Recognition’ rather than reforms to the Constitution. 30 Freeman and Leeser argued that, since the Constitution is a ‘practical and pragmatic’ instrument that ‘contains no statement of the nation’s aspirations’, it is not the appropriate place for Indigenous recognition and its attendant ‘words of aspirational poetry’. 31 Their solution, an extra-constitutional Declaration of Recognition, would allow for expansive and poetic language without compromising the practical Constitution’s integrity.
Conservative politicians have likewise deployed the symbol of the practical Constitution as a weapon against Indigenous constitutional recognition. Take, for instance, comments against Indigenous recognition made by Liberal Senator Amanda Stoker on the popular conservative radio program The Alan Jones Breakfast Show in 2019. Stoker insisted that ‘[o]ur Constitution is a mechanical document’ rather than ‘a document that’s meant to make us feel peace with our history or to feel loved or to feel included or to feel any of a bunch of emotions’. 32 Indigenous recognition, Stoker argued, would compromise the Constitution’s benign mechanical nature by entrenching ‘identity politics and racial differences’ within it. 33
Such invocations of the practical Constitution attempt to depoliticise the Constitution while simultaneously connecting it, in a partisan fashion, with a longstanding theme of British liberal–conservative thought. On the one hand, if the Australian Constitution is purely technical and practical, then it is the rightful preserve of legal experts rather than a contested political domain involving appeals to values and identities. On the other hand, the trope of the practical Constitution itself involves an appeal to particular values and identities embedded in the British liberal–conservative tradition. Often traced back to Edmund Burke, that tradition lauds the British people’s aversion to abstract theorising in politics and celebrates their preference—and great talent—for ‘practical politics’, manifest most gloriously in the unwritten British Constitution. 34 This liberal–conservative way of thinking about British politics, constitutionalism and national identity—a salutary fixation on the practical, not the abstract or symbolic—informed the thinking of the colonial liberals and conservatives who drafted the Australian Constitution itself. 35 As the Indigenous recognition debate shows, it persists among liberal–conservative circles as a way of representing Australia’s constitutional tradition.
While typically deployed by conservative opponents of Indigenous recognition, the idea of the Constitution as a practical instrument has also been mobilised by supporters of Indigenous recognition. Again, they are principally those with liberal–conservative leanings, or at least those willing to engage liberal–conservatives. 36 Most prominent among this camp is Aboriginal intellectual Noel Pearson. After conservatives objected to an earlier Indigenous recognition proposal to insert a ban on racial discrimination into the Constitution, Pearson in 2014 sought to assuage their concerns by proposing the alternative of a constitutionally enshrined Indigenous body to advise Parliament on policymaking in Indigenous affairs. Adopting the conservative argument that ‘the Constitution is a practical rule book governing national power relationships’, Pearson argued that the Constitution needed to address the neglected power relationship between Indigenous peoples and the Australian state. 37
Pearson’s idea for Indigenous recognition ended up winning the backing of several prominent constitutional conservatives. Among them was Freeman and Leeser’s organisation Uphold & Recognise, which was satisfied that the proposal was a good fit for Australia’s ‘practical charter of government’. 38 Something akin to Pearson’s proposal was also endorsed in the 2017 Uluru Statement from the Heart (‘Uluru Statement’), which called for a First Nations Voice enshrined in the Constitution—albeit in the name of Indigenous sovereignty rather than out of respect for Australian’s practical Constitution. 39
B The Liberal Constitution
Related to the symbol of the practical Constitution, and often invoked alongside it, is the symbol of the liberal Constitution—once again, a symbol most commonly summoned by liberal–conservatives against proposals for Indigenous recognition. They argue that the Constitution is at heart a liberal document that recognises the equal rights and responsibilities of individuals. Accordingly, it should admit no distinctions between citizens on the basis of race and make no concessions to ‘identity politics’. Indigenous recognition would violate these liberal principles because it would involve acknowledging the distinct status of Aboriginal and Torres Strait Islander peoples and thereby privilege them over every other racial group. Accordingly, Indigenous recognition should be rejected to preserve the Constitution’s character as a bastion of liberal neutrality.
The symbol of the liberal Constitution has been a staple of conservative commentary against Indigenous constitutional recognition. For instance, Greg Sheridan, a columnist for The Australian, in 2014 denounced Indigenous recognition as a disastrous attempt to introduce ‘ethnic distinctions into our Constitution and inevitably into the nature of our citizenship’. Identifying as ‘an old-fashioned liberal on race’, Sheridan insisted that ‘[t]he Constitution belongs to all Australians’ and called on the Liberal Party ‘to defend the universal liberal principles that underlie the Constitution’ by rejecting Indigenous recognition. Sheridan also tied this liberal vision of the Constitution to its status as a practical instrument of government. Arguing that Australians ‘tend to make our most epic achievements with little symbolic accompaniment’, he numbered among those achievements Australia’s liberal Constitution, which was ‘exceptionally good partly because it is so functional and non-symbolic’. Indigenous constitutional recognition, by contrast, would run against the constitutional grain through its appeal to symbolism and inevitably become another failed attempt in a long string of futile symbolic gestures in Indigenous affairs. 40
An especially insistent purveyor of the symbol of the liberal Constitution against Indigenous recognition has been the influential conservative think tank, the Institute of Public Affairs (‘IPA’). For instance, after the Uluru Statement was issued in May 2017, IPA Executive Director John Roskam, along with IPA colleague Simon Breheny, wrote in the Sydney Morning Herald to denounce the Uluru Statement’s proposals for their inconsistency with Australia’s liberal Constitution. The principle that ‘[a]ll Australians are equal’ was, they said, ‘the basis of our freedoms and a cornerstone of the Australian Constitution’. The Constitution’s foundation on the principle of equality explained why ‘Australia is one of the oldest and most successful democracies’. The Uluru Statement’s ‘radical identity politics’ had to be rejected because they were fundamentally inconsistent with the liberal equality underpinning the Constitution. 41 In 2019, the IPA stepped up its opposition to Indigenous recognition by launching an online campaign called ‘Race Has No Place’, in which both the liberal and practical visions of the Constitution were central. 42
A liberal account of the Constitution underlay the Turnbull Coalition Government’s rejection in October 2017 of a constitutionally enshrined First Nations Voice, as called for in the Uluru Statement. The Government emphasised that ‘[o]ur democracy is built on the foundation of all Australian citizens having equal civic rights’, including in the domain of representative government. A First Nations Voice would effect ‘a radical change to our constitution’s representative institutions’ and ‘undermine the universal principles of unity, equality and “one person one vote”’ on which the Constitution was built. 43
C The Outdated Constitution
A third symbolic Constitution frequently summoned in the Indigenous recognition debate, this one more critical, is that of the outdated Constitution. Mobilised mainly by progressives and centrists rather than conservatives, this trope represents the Constitution as an anachronistic document that fails to properly reflect contemporary Australian values and identity, particularly through its reliance on the concept of ‘race’. Two provisions are singled out for critique: s 25, which contemplates the denial of voting rights to people on the basis of race, and s 51(xxvi), the ‘race power’, which gives the Federal Parliament lawmaking power over ‘the people of any race for whom it is deemed necessary to make special laws’. These provisions are seen to reflect a now-vanished and less-enlightened world that practised the discriminatory governance of non-white people. For those invoking the outdated Constitution, a common concern is to cleanse the Constitution of the remnants of the outmoded concept of race and to properly reflect the egalitarian and multicultural character of modern Australian society.
The symbol of the outdated Constitution is most commonly deployed by advocates on the more progressive end of the political spectrum. One of the most influential actors on this front was the Expert Panel on Constitutional Recognition of Indigenous Australians. 44 Established by the Gillard Labor Government in late 2010 and delivering its final report in early 2012, the Expert Panel criticised the Constitution and its race-based provisions for their ‘complicity in a long history of exclusionary and discriminatory settler nationalism’. 45 Unsatisfied with merely repealing the Constitution’s existing references to race, the Expert Panel also recommended adopting a constitutional prohibition on racial discrimination, so as to acknowledge Australia’s history of racially discriminatory rule, to prevent its repetition and to properly reflect modern Australian attitudes. 46 The Expert Panel’s constitutional narrative of a Constitution still mired in antiquated notions of race has proven popular among more progressive Australians, although its recommendations are now substantially overshadowed by the different constitutional demands made in the Uluru Statement.
A more centrist mobilisation of the outdated Constitution came from the government-funded and now-disbanded ‘Recognise’ campaign. 47 Established in 2012 and shuttered in late 2017, Recognise sought to raise public awareness of and support for Indigenous constitutional recognition. A consistent message from the Recognise campaign was that the Constitution’s reliance on race represented an anachronism out of step with contemporary views. As the Recognise website proclaimed in 2017, the Constitution’s references to race are ‘leftover from a period of our history that is long gone. Australians must ensure we don’t hand over a Constitution that allows for racial discrimination to our children.’ 48 But Recognise’s critique of the Constitution’s outdated reliance on race primarily emphasised the need to simply repeal the offending race provisions in ss 25 and 51(xxvi). Unlike the Expert Panel, Recognise generally did not advocate taking the more substantive and far-reaching step of creating a constitutional prohibition on racial discrimination.
D The Exclusionary Constitution
Another constitutional symbol widely used in the debate on Indigenous constitutional recognition is that of the exclusionary Constitution. Like the outdated Constitution, indeed often entangled with it, the exclusionary Constitution is a trope mobilised predominantly by progressives as a means of critique, though the trope, especially in its milder forms, is sometimes taken up by conservatives. The political agenda behind mobilisations of the exclusionary Constitution is to promote Indigenous constitutional recognition or to otherwise unsettle the constitutional status quo. The basic idea is that, from its inception, the Constitution has served to exclude Aboriginal and Torres Strait Islander peoples in various ways. That exclusion is framed as the denial of Aboriginal and Torres Strait Islander peoples' status as Australian citizens or their status as Indigenous peoples with distinctive collective claims for recognition—or both.
In its more moderate and conservative guises, appeals to the exclusionary Constitution critique Aboriginal and Torres Strait Islander peoples’ textual exclusion from an important national symbol and, to rectify that exclusion, press for some symbolic Indigenous acknowledgement in the Constitution’s text. Take, for example, the following pronouncement in support of Indigenous constitutional recognition made in Parliament in 2013 by Liberal Opposition Leader Tony Abbott: our challenge is to do now in these times what should have been done 200 or 100 years ago to acknowledge Aboriginal people in our country’s foundation document. In short, we need to atone for the omissions and for the hardness of heart of our forebears to enable us all to embrace the future as a united people.
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To address this Indigenous textual exclusion, Abbott envisaged inserting some formal reference to Aboriginal and Torres Strait Islander people in the Constitution’s text. 50 The Recognise campaign likewise repeatedly emphasised a moderate version of the exclusionary Constitution narrative and pointed towards symbolic Indigenous constitutional acknowledgement as the remedy. As the Recognise website proclaimed in 2017, ‘[b]y the Constitution remaining silent on Australia’s long and impressive Aboriginal and Torres Strait Islander history before 1901, our founding document implies the first chapter of our national story either didn’t happen or isn’t important’. Constitutional reform was needed, Recognise said, to ‘acknowledge that first chapter of our shared story’. 51
A more critical account of the exclusionary Constitution emphasises the Constitution’s substantive exclusionary effects in advancing settler colonialism, enabling governmental discrimination and denying Indigenous rights. Those relating this narrative of the exclusionary Constitution also see its resolution through more far-reaching constitutional reforms than formal Indigenous acknowledgement in the Constitution’s text. As Patrick Dodson, a Yawuru man, Labor Senator and longstanding advocate of constitutional reform, wrote in the Griffith Review in 2018, ‘[t]he Australian Constitution was written by people who believed Indigenous people were lesser beings, and their race rhetoric is entrenched in the nation’s founding document’. 52 Contemporary conservative politicians who oppose Indigenous constitutional rights as violations of the principle of equality, wrote Dodson, uphold the Constitution’s foundational ‘narrative of terra nullius’, ‘conveniently ignor[ing] the fact that the land was taken from First Nations people by force, without consent or compensation’. 53 Conservative appeals to equality are ‘aimed at delegitimising the genuine position of the First Nations as sovereign peoples’. 54 In Dodson’s view, overcoming this history of constitutional exclusion demands instituting the Uluru Statement’s call for a constitutionally enshrined First Nations Voice, treaty-making and processes of truth-telling, as well as addressing the Constitution’s legacy of racial discrimination.
Some advocates have mobilised the exclusionary Constitution to oppose Indigenous recognition in the Constitution altogether, in favour of alternative political projects such as a treaty or the recognition of Indigenous sovereignty. As Arrente writer and activist Celeste Liddle said in a 2015 speech, ‘[t]he Constitution was a document written with our purposeful exclusion and imposed on our lands without our consent. The act of simply writing us into this constitution does not right this wrong.’ 55 Rather than pursuing constitutional recognition, Liddle advocated starting first with a treaty that recognises Indigenous sovereignty. 56 In a similar vein, Aboriginal writer and academic Tony Birch has denounced the Constitution as ‘a racist document’ resolutely wedded to ‘its original brief: to deny or restrict the rights of those deemed unable to conform to the ideal of white citizenship’. 57 Perplexed about ‘why any group or individual would seek formal recognition in such a document’, Birch has called instead for the Constitution to be ‘torn up and rewritten as a bill of universal human rights’. 58
III Conclusion
This article has sought to challenge the conventional story of the Australian Constitution’s public life—or lack thereof—told by constitutional scholars. That story, though it contains a degree of truth, has led us to overlook the numerous ways that the Constitution has been imbued with symbolic significance in Australian political culture. As the debate over Indigenous constitutional recognition shows, political actors regularly deploy different symbolic visions of the Constitution for a variety of political purposes, ranging from staunch defences of the constitutional status quo through to radical denunciations of it. Invocations of the practical and liberal Constitution are mainly the preserve of conservatives opposing Indigenous recognition, while invocations of the outdated and exclusionary Constitution issue predominantly from progressives to support Indigenous recognition or other institutional changes. Understanding constitutional symbolism helps us to see the ideological work that the Constitution performs outside its official role as a legal instrument. It also helps us, as constitutional scholars, to be more conscious of how we contribute to that ideological work through our representations of the Constitution. Whether wittingly or not, when we present the Constitution as a largely invisible, technical instrument disconnected from values and national identity, we depoliticise it—and thereby shore up the constitutional status quo. In that process, we also shore up our own power as the Constitution’s expert exegetes. It is worth asking whether there are better ways of exercising that power, approaches directed to the task of constitutional transformation rather than constitutional preservation.
